SAMR-RB 24April 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150017707 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 4 April 2017, in which majority of the Board members recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 1O, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a new DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 July 1991, showing the following entries: • Item 4a (Grade, Rate or Rank): Staff Sergeant • Item 4b (Pay Grade): E-6 • Item 12h (Date of Rank): 7 May 1984 • Item 24 (Character of Service): Under Honorable Conditions • Item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 • Item 26 (Separation Code): JFF • Item 27 (Reentry Code): 3 • Item 28 (Narrative Reason for Separation): Secretarial Authority 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 24 August 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown SAMR-RB SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150017707 interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017707 BOARD VOTE: ________ ____x____ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ________ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017707 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017707 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The applicant states he was accused but no proof was given for the acts of which he was accused. He served 12 years of honorable service and he would like his discharge upgraded in order to receive medical and burial benefits. 3. The applicant provides no additional evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 16 October 1979. He completed his initial entry training and was awarded military occupational specialty (MOS) 16J (Defense Acquisition Radar Operator). The highest rank/grade he attained while serving on active duty was staff sergeant/E-6. A review of his DA Form 2-1 (Personnel Qualification Record) shows his date of rank was 7 May 1984. 3. The applicant's record contains: a. A form titled "Medical Examination for Separation/Retirement – Statement of Option," dated 7 May 1991, on which the applicant indicated he did not desire a separation medical examination. b. A DA Form 4856 (General Counseling Form), dated 5 June 1991, which shows he was counseled by an officer (presumably, his platoon leader). The counseling indicated: (1) The applicant was being considered for possible administrative separation as a result of another Soldier's written signed statements and admission that he and the applicant had participated in homosexual activities on three separate occasions. There had been other statements made by other Soldiers that indicated the applicant made homosexual advances towards them. An investigation into the issue was ongoing. (2) At the time, homosexuality was considered incompatible with military service. The applicant was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, and could receive an under other than honorable conditions discharge. (3) The applicant concurred and signed the counseling form on the same date. c. A DA Form 3822 (Report of Mental Status Evaluation), dated 7 June 1991, shows the applicant was evaluated by a licensed psychiatrist and determined to be fully alert and oriented, with normal behavior, and with clear thought process and normal thought content. It was determined the applicant had a personality disorder not otherwise specified (NOS) that was a deeply ingrained maladaptive pattern of behavior of long duration that significantly impaired his ability to function effectively in the military. Command action was preferred rather than repetitive corrective measures through medical channels. It was further determined he was mentally responsible, with the mental capacity to understand and participate in any proceedings, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 4. The applicant's immediate commander notified him on 14 June 1991 that he intended to initiate separation action against the applicant under the provisions of Army Regulation 635-200, chapter 15, by reason of homosexuality. The specific reasons for the commander's actions included the applicant's solicitation of, on at least three occasions, and participation in homosexual acts. Also, on three occasions, he paid another Soldier (a specialist (SPC)/E-4) to participate in homosexual acts with him. Further, on various occasions, he attempted to participate in homosexual acts with several other Soldiers. The commander further discussed the applicant's entitlements and rights. 5. The applicant acknowledged receipt of the commander's notification on the same day, and consulted with legal counsel. He was advised of the basis for the contemplated separation action for homosexuality, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. The applicant elected not to submit a statement in his own behalf and requested an administrative separation board to consider his case. He also acknowledged that he might expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him. 6. The applicant altered his acknowledgment memorandum on 17 June 1991, indicating he had changed his mind and now waived consideration of his case by an administrative separation board. 7. Subsequent to this acknowledgement, the applicant’s immediate commander recommended that he be separated in accordance with Army Regulation 635-200, chapter 15, by reason of homosexuality. 8. The applicant's battalion and brigade commanders recommended approval of the action on 17 and 18 June 1991, respectively, and recommended the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate. 9. The separation authority approved the applicant's discharge on 28 June 1991, under the provisions of Army Regulation 635-200, chapter 15, and directed the issuance of a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate). He also directed the applicant’s reduction from staff sergeant/pay grade E-6 to the lowest enlisted grade of private/pay grade E-1. 10. The applicant was discharged on 12 July 1991, following completion of 11 years, 8 months, and 27 days of net active service this period. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms the following entries: * item 4a (Grade, Rate or Rank): Private * item 4b (Pay Grade): E-1 * item 12h (Date of Rank): 28 June 1991 * item 24 (Character of Service): Under Other Than Honorable Conditions * item 25 (Separation Authority): Army Regulation 635-200, paragraph 15-3a * item 26 (Separation Code): JRA * item 27 (Reentry (RE) Code): 4 * item 28 (Narrative Reason for Separation): Engaged in Homosexual Act(s) 11. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. REFERENCES: 1. Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command. It provides guidance covering military discipline and conduct, precedence of rank, and the military Equal Opportunity Program. Chapter 4 - Military Discipline and Conduct, states relationships between soldiers of different rank that involve, or give the appearance of, partiality, preferential treatment, or the improper use of rank or position for personal gain, are prejudicial to good order, discipline, and high unit morale. It is Army policy that such relationships will be avoided. It has been further amended to prohibit relationships that includes dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships between noncommissioned officers and junior enlisted Soldiers. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time, chapter 15 stated that homosexuality was incompatible with military service and provided for the separation of members who engaged in, attempted to engage in, or solicited another person to engage in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Table 3-1 provides a list of RE codes. * the RE Code "1" applies to Soldiers who have completed their terms of active service who are considered qualified for enlistment if all other criteria are met * the RE Code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time, this regulation prescribed SPD code "JRA" as the appropriate code to assign to Soldiers separated under the provisions of chapter 15 of Army Regulation 635-200, based on homosexual act(s). Additionally, the SPD/RE Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. The Under Secretary of Defense for Personnel and Readiness memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to follow when taking action on applications from former service members discharged under "Don't Ask – Don't Tell" (DADT) or prior policies. 6. This memorandum states that, effective 20 September 2011, Service DRB's should normally grant requests in these cases to change the: * narrative reason for discharge to "SECRETARIAL AUTHORITY" * separation program designator code to "JFF" * character of service to honorable, if warranted * RE code to an immediately-eligible-to-reenter category 7. For the above corrections/amendments to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct 8. The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. 9. The memorandum also recognized that although BCM/NR's have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRB's, it is Department of Defense (DOD) policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted. Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law. Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those same or prior periods. Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The applicant contends there was no proof showing he committed the acts that he was accused of. However, a DA Form 4856 shows he was counseled by an officer in his chain of command for the possibility of his elimination under the provisions of Army Regulation 635-200, chapter 15, based on homosexuality. Furthermore, he concurred with the counseling on 5 June 1991. 3. The applicant was discharged on 12 July 1991 under the provisions of Army Regulation 635-200, paragraph 15-3a, by reason of homosexual act(s) with an under other than honorable conditions characterization of service after it was determined he had performed such conduct. He was assigned a separation code of "JRA" and an RE code of "4." The separation authority also reduced him to the lowest enlisted rank and grade. 4. The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The available record contains no evidence of procedural or other errors that would have jeopardized his rights. 5. Recent changes in law, specifically, the repeal of Section 654 of Title 10, U.S. Code, have resulted the Services' ability to apply current standards to previously-separated Soldiers as a matter of equity. The Under Secretary of Defense’s memorandum of 20 September 2011 provides that re-characterization of a discharge to honorable should normally be granted when both of the following conditions are met: (1) the original discharge was based solely on DADT or a similar policy in place at the time, and (2) there were no aggravating factors in the record, such as misconduct. In this case, aggravating factors do exist. 6. The applicant's was a noncommissioned officer (SSG) and his conduct involved a sexual relationship with a junior enlisted Soldier (SPC). Intimate or sexual relationships between junior enlisted Soldiers and noncommissioned officers are prohibited in accordance with governing regulations in effect at the time and currently in effect. His ill-considered intimate relationship with the junior enlisted Soldier is further exacerbated by the fact that he paid money on three occasions in exchange for the Soldier's sexual acquiescence. 7. Given the significant disparity in rank, the applicant’s status as a noncommissioned officer, and the exchange of money for sex, it is apparent that the relationship was, at least to some degree, exploitative in nature. His conduct was prejudicial to military good order and discipline irrespective of the time period in which it occurred (prior to DADT repeal) and irrespective of whether it involved heterosexual or homosexual activity. Consequently, the applicant’s misconduct would appear to remove his case from the category of cases for which an honorable characterization would normally be granted under the Under Secretary of Defense’s memorandum of 20 September 2011. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2